ICA’s Essential Elements Required of Any Medicare Legislation

1. Maintain the current mandate for coverage of the adjustment to correct a subluxation.
2. Preserve Subluxation reference in definition.
3. Remove the restrictive language used to limit reimbursements to the adjustment “only.”
4. Ensure that x-ray imaging and exams are covered services.
5. Maintain economic neutrality by removing barriers to reimbursements for existing covered services only.
6. Establish equitability in reimbursement rates to other physician level providers.
7. Eliminate discrimination that denies patients of chiropractic physicians the ability to privately contract and chiropractors to Opt-out of the Medicare system if they so choose.

ICA legislative experts all agree that  any Medicare legislation should be clear and give CMS specific instruction with deadlines for implementation. History has proven that Congress must provide specific instructions on coverage and deadlines for implementation, or the legislative goals will not be met. When a Medicare  bill is signed into law do you really want to wait 3 to 5 years for CMS to study the matter and publish a proposed rule and then another year or two for that proposed rule to be finalized?  Do you really trust Medicare to get it right on what should and should not be reimbursed?  That is exactly what is likely to happen if 1610/799 become law.

In the 117^th Congress the ICA Endorsed HR 8701 the Chiropractic Act of 2022. With the 118^th Congressional session, we are working to see an improved version of that bill introduced. We believe our approach is one that gets everything accomplished that the Chiropractic community is seeking and does so with surety and a timeline.  We know the bill, if signed into law will immediately benefit the Medicare Beneficiaries who have paid into the program for decades. Our bill will not increase costs, and principled chiropractors across the country who desire to take care of seniors and people with disabilities who rely on Medicare for their healthcare will agree with this approach.   Below is a chart that compares the two bills.  A year into the legislative cycle, we want to update the community.  We are not ‘going negative’ on the legislation we are not endorsing, rather we are informing the chiropractic community and legislators about our position and to offer facts on both legislative approaches so that we can all work toward the common goal of fixing the issues in Medicare fairly and with certainty. 

Compare and Contrast the Two Chiropractic-Medicare Bills

What are the Differences between HR 1610 and the revised Chiropractic Act?

ICA –Standing Firm on our Principles of  Protecting and Promoting Chiropractic.

• strengthened guidance on best practice and evidence-based care;

• detailed proper informed consent;

• clarified practice that is within a chiropractor’s skills, competence and expertise;

• and discussed advertising that is in accordance with the National Law; communication; and good practice with vulnerable communities, including children and young people.

ICA notes that the Board noted that no actual reports of harm were received by the Board in children. The systematic review of the literature for the pediatric population that was replicated in 2022 returned similar outcomes to the 2019 study, which is that the available published studies included in the review were ‘consistent in finding that it is difficult to draw conclusions on safety and effectiveness.’

ICA is pleased that the strong voices of both science and the public were heard in Australia and that children once again will be able to receive regular chiropractic care.

One important next step in the global chiropractic community is to develop a pediatric research agenda in regular chiropractic care to add to the evidence base. The ICA looks forward to working with our colleagues in the global research community on this important topic.

To read the full statement from the Board – please click here. https://www.chiropracticboard.gov.au/Codes-guidelines/Position-statements/Statement-of-Paediatric-care.aspx

ICA Endorsed Medicare Legislation Introduced

August 12, 2022 (Falls Church, VA) Today, Congressman Bill Posey of Florida introduced H.R. 8701: The Chiropractic Act of 2022. The International Chiropractors Association (ICA) is proud to endorse this legislation. The entire U.S-based chiropractic profession has asked for years to improve Medicare. H.R. 8701 provides the needed solutions. This legislation can be quickly passed into law. It provides clear instructions for standards of care evaluation and management services (exams and radiological imaging, when needed).

Three years ago, in passing SUPPORT for the Patients and Communities Act of 2018 (Public Law 115-271), Congress confirmed the need to make changes in Medicare to remove barriers to non-opioid, non-pharmacologic alternatives for both acute and chronic pain. The Center for Medicare and Medicare Services (CMS) responded to remind them that they cannot make these needed fixes for accessing chiropractic without Congressional action. Medicare beneficiaries deserve legislation that can be enacted upon passage, which is what can happen with H.R. 8701. While chiropractic does more than address back and neck pain, it is a first line of care for these symptoms, and experts say that if chiropractic is the first line of care for low back pain, the patient is at least 50% less likely to end up with an opioid prescription. Chiropractic focuses on resolving issues, not simply suppressing the symptom of pain.

The Chiropractic Act of 2022

1. Provides specific instructions to CMS to cover what is standard of care – evaluation and management services – specifically including examination and when needed radiographic imaging services, while specifically excluding any expansion of scope for the prescribing of drugs – an important clarification that the Congress agrees with a majority of the chiropractic profession.
2. Streamlines provisions regarding a patient’s freedom to privately contract for services so that all physicians as defined in Medicare (which includes chiropractors) are able to privately contract. This is commonly referred to as the Opt-Out Provision. Chiropractors are the only physicians currently not included in this provision.
3. Eliminates the vestiges of the antitrust discrimination against chiropractors that were at play in 1972 when chiropractic was included in Medicare.
4. This bill provides swift implementation so that Medicare beneficiaries may benefit from the changes as quickly as possible.

Dr. Selina Sigafoose Jackson, ICA President, said, “Today is a day that will go down in the chiropractic history record books. Decades of work from so many ICA warriors, have culminated in H.R 8701. So proud of our Board, past and present, and the entire ICA team to have achieved this bill’s introduction. Now my friends, let’s roll up our sleeves, and get to work and get this passed. The time is now for Medicare patients to be respected through this legislation, to be able to choose chiropractic and to be reimbursed fairly.”

Beth Clay, ICA Executive Director, said, “The ICA appreciates Congressman Bill Posey’s introduction of H.R. 8701, the Chiropractic Act of 2022. This bill is the solution to the barriers to access for Medicare beneficiaries who desire to seek chiropractic care and to be treated equitably in the program they have paid into for decades. We look forward to building support for it quickly and seeing it signed into law.”

To learn more about how you can support this legislation and to read the bill, visit https://www.chiropactic.org.

H.R. 8701 The Chiropractic Act of 2022

January 21, 2022 (Falls Church, VA) Today, Federal Judge Jeffrey Brown issued an order that blocks the enforcement of a COVID Vaccine Mandate on federal employees. Judge Brown had issued an opinion in September indicated that President Biden had exceeded his authority related when issuing an Executive Order that required federal employees consent to vaccination against COVID-19 or lose their jobs. This injunction summarizes the question at hand:

“The court notes at the outset that this case is not about whether folks should get vaccinated against COVID-19…It is instead about whether the President can, with the stroke of a pen and without the input of Congress, require millions of federal employees to undergo a medical procedure as a condition of their employment. That, under the current state of the law as just recently expressed by the Supreme Court, is a bridge too far…”

This is an example of the the branches of government providing the intended checks and balances envisioned by the Founding Fathers and embodied in the US Constitution.

January 13, 2022 3:00 pm (Falls Church, VA) Mid-afternoon today, the Supreme Court blocked the Biden Administration’s vaccine and testing mandate for large employers, while allowing a separate vaccination mandate for employees for healthcare facilities that receive Medicare and Medicaid funding.

The first ruling official statement in the docket is: Nat. Fed’n of Indep. Bus. v. Dept. of Labor (21A244) and
Ohio v. Dept. of Labor (21A247) consolidated

The applications for stays (21A244 & 21A247) presented to JUSTICE KAVANAUGH and by him referred to the Court are granted. OSHA’s COVID–19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402, is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the Sixth Circuit and disposition of the applicants’ petitions for writs of certiorari, if such writs are timely sought. Should the petitions for writs of certiorari be denied, this order shall terminate automatically. In the event the petitions for writs of certiorari are granted, the order shall terminate upon the sending down of the judgment of this Court. VIDED.

The second official statement in the docket is: Biden v. Missouri (21A240) and Becerra v. Louisiana (21A241) consolidated

The applications for stay presented to JUSTICE ALITO (21A241) and JUSTICE KAVANAUGH (21A240) and by them referred to the Court are granted. The District Court for the Eastern District of Missouri’s November 29, 2021, order granting a preliminary injunction is stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Eighth Circuit and the disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court. The District Court for the Western District of Louisiana’s November 30, 2021, order granting a preliminary injunction is stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Fifth Circuit and the disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court. VIDED.

Stay tuned for updates.

“The court ordered that OSHA ‘take no steps to implement or enforce’ the ETS [Emergency Temporary Standard] ‘until further court order.’ While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation,” OSHA said. While the agency and the administration maintain they believe they have the authority, the courts extensive response to the court case spells out a very different view.

In a 22-page ruling last week, the 5th U.S. Circuit Court of Appeals wrote that the administration’s COVID-19 vaccine and testing mandate was “fatally flawed” and ordered that OSHA not enforce the requirement “pending adequate judicial review” of a motion for a permanent injunction.

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CMS is clear – this interim final rule does not apply to other health care entities such as ‘physician’ office, only to the providers and suppliers listed below.

This is an extensive document (over 200 pages). You can read it here in its unofficial posting

https://public-inspection.federalregister.gov/2021-23831.pdf

The ICA will be reviewing and providing comments to CMS. We had previously notified membership through a press release of September 13 which provided:

Updated September 13 at 3:30 pm: CMS provided the following information on background regarding clarification on the mandate rule:

“This regulation does not directly apply to physician’s offices as these are not regulated under the provider-specific Medicare health and safety regulatory provisions, generally referred to as “Conditions of Participation.”

Given that Doctors of Chiropractic are ‘physicians’ in Medicare, this mandate as currently issued, will not apply to chiropractors in private practice. ICA will keep you posted if this changes.

Updated September 13 at 1:10 pm: Official Statement from CMS Spokesperson on background, “

On background and attributable to CMS spokesperson:

CMS anticipates that the staff vaccination requirement would apply to Medicare and Medicaid-certified provider and supplier types that comply with the Medicare health and safety regulatory provisions, known as the Conditions of Participation, which includes, but is not limited to, hospitals, dialysis facilities, ambulatory surgical centers, and home health agencies.”

It would appear the spokesperson was accurate on September 13.

The List of providers and Suppliers included in this interim final rule.

● Ambulatory Surgical Centers (ASCs) (§ 416.51)

● Hospices (§ 418.60)

● Psychiatric residential treatment facilities (PRTFs) (§ 441.151)

● Programs of All-Inclusive Care for the Elderly (PACE) (§ 460.74)

● Hospitals (acute care hospitals, psychiatric hospitals, hospital swing beds, long term

care hospitals, children’s hospitals, transplant centers, cancer hospitals, and rehabilitation

hospitals/inpatient rehabilitation facilities) (§ 482.42)

● Long Term Care (LTC) Facilities, including Skilled Nursing Facilities (SNFs) and

Nursing Facilities (NFs), generally referred to as nursing homes (§ 483.80)

● Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFs-IID) (§ 483.430)

● Home Health Agencies (HHAs) (§ 484.70)

● Comprehensive Outpatient Rehabilitation Facilities (CORFs) (§§ 485.58 and 485.70)

● Critical Access Hospitals (CAHs) (§ 485.640)

● Clinics, rehabilitation agencies, and public health agencies as providers of outpatient

physical therapy and speech-language pathology services (§ 485.725)

● Community Mental Health Centers (CMHCs) (§ 485.904)

● Home Infusion Therapy (HIT) suppliers (§ 486.525)

● Rural Health Clinics (RHCs)/Federally Qualified Health Centers (FQHCs) (§ 491.8)

● End-Stage Renal Disease (ESRD) Facilities (§ 494.30)

If you are not employed in one of these facilities and thus you are not effected.

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Updated Friday morning 8:00 am – Overnight CMS issued the formal announcement with a press release. The link is available here: https://www.cms.gov/newsroom/press-releases/biden-harris-administration-issues-emergency-regulation-requiring-covid-19-vaccination-health-care

FAQ link: https://www.cms.gov/files/document/cms-omnibus-staff-vax-requirements-2021.pdf

Midway through the FAQ page it again reiterates this rule – this vaccine mandate- does not apply to “physician officers” (Doctors of Chiropractic are categorized as physicians in Medicare) – so you and your staff if not in one of the named facilities are not subject to this mandate.

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The OIG states: Under the Proposed Arrangement: Requestor would permit all patients, including Federal health care program beneficiaries, to utilize any offered discounts on the same terms. Any such discounts would be offered and advertised to the general public and not targeted to Federal health care program beneficiaries. Consistent with its current practice, under the Proposed Arrangement, Requestor would offer various discount promotions throughout the year, each of which would be limited in supply, expire on a specified date, or both. Requestor does not and would not notify patients of any discount offers while patients are at a clinic; in other words, patients already must be aware of a
discount offer and must affirmatively ask for the discount when they present for an appointment. Requestor charges its standard rates to patients who do not request a discount.

It was noted, “The chiropractors are enrolled as non-participating providers with Medicare.” and that “Requestor certified that, when billing Medicare beneficiaries, it adheres to the Medicare Physician Fee Schedule, which sets limiting charges for covered services.”

Through the ruling, it was obvious there was some back and forth between the OIG and the Clinic in order to be entirely accurate in the information they were evaluating.

The OIG Issued Opinion Stated, “Based on the relevant facts certified in your request for an advisory opinion and supplemental submissions, we conclude that: (i) although the Proposed Arrangement, if undertaken, would
generate prohibited remuneration under the Federal anti-kickback statute if the requisite intent were present, the OIG would not impose administrative sanctions on Requestor in connection with the Proposed Arrangement under sections 1128A(a)(7) or 1128(b)(7) of the Act, as those sections relate to the commission of acts described in the Federal anti-kickback statute; and (ii) although the Proposed Arrangement, if undertaken, would generate prohibited remuneration
under the Beneficiary Inducements CMP, the OIG would not impose administrative sanctions on Requestor in connection with the Proposed Arrangement under the Beneficiary Inducements CMP or section 1128(b)(7) of the Act, as that section relates to the commission of acts described in the Beneficiary Inducements CMP.

CAUTION: This does not mean you are clear to use discounts with Federal beneficiaries.

The OIG in the ruling that this is not a ruling that applies across the board. This opinion ONLY applies to the requestor, not to all chiropractors. Remember the law referenced carry both criminal and monetary penalties, so caution is warranted. This is good news though, on many levels. The most important of which is that what one has done, others may also do.

A RoadMap Now Exists: The great news is that now a roadmap exists for you if you desire to seek a similar advisory opinion, your attorney is not starting from scratch.

Thank you to the “Unnamed Clinic Owner” for blazing this trail!

While the ICA reported last year finding an active duty military officer who is a doctor of chiropractic, his duties within the military were not related to delivering chiropractic care. There are over 1.4 milllion active duty military personnel and over 330 reserve military personnel relying on the military health system for care. That symstem, currently has less than 100 chiropractors delivering chiropractic care at military facilities. These doctors are not active duty military members. They are either hired as civilian employees or as contractors. The mission of the military health system also includes that they are to provide medical benefit commensurate with the service and sacrifice of more than 9.6 million active duty personnel, military retirees and their families.

Chairman of the Senate Armed Services Committee, Jack Reed (D-RI) and Ranking Member Jim Inhoff (R-OK) and members of the committee have now directed the Secretary of Defense to brief both the Senate and House Armed Services Committee by March 1, 2022 on their assessment of the feasibility of using the Department’s statutory authority to commission chiropractors as military officers. The Committee instructed the Secretary to include in the assessment the following:

1. Any combatant commander requirements for chiropractors as part of operating or generating forces;
2. The potential role of military chiropractors in deployed medical units;
3. The conditions under which the Department would deem military chiropractors as a critical wartime medical
   specialty; and
4. Any recommendations, as may be required, for the committees to clarify related authorities or adjust end-
   strength allowances for the commissioning of chiropractors as military officers.

ICA Executive Director, Beth Clay explained, “The Senate and House include requests such as this in the report that accompanies the appropriations bill, because there are strict limits on what will be included in the actual bill. The accompanying report provide the details. It is in these reports that legislators will offer official praise and consternation, and in this instance, instructions for actions to be taken which includes a report back to the Committee in a relatively short period of time (six months).” `

We have many supporters on Capitol Hill. We feel it is important to say thank you when they take action that will advance the profession. A link to our letter is provided below.

“This regulation does not directly apply to physician’s offices as these are not regulated under the provider-specific Medicare health and safety regulatory provisions, generally referred to as “Conditions of Participation.”

Given that Doctors of Chiropractic are ‘physicians’ in Medicare, this mandate as currently issued, will not apply to chiropractors in private practice. ICA will keep you posted if this changes.

Updated September 13 at 1:10 pm: Official Statement from CMS Spokesperson on background, “

On background and attributable to CMS spokesperson:

CMS anticipates that the staff vaccination requirement would apply to Medicare and Medicaid-certified provider and supplier types that comply with the Medicare health and safety regulatory provisions, known as the Conditions of Participation, which includes, but is not limited to, hospitals, dialysis facilities, ambulatory surgical centers, and home health agencies.”

September 10, 2021 (Falls Church, VA) Today US President Biden, issued a series of Executive Orders related to mandating federal employees and federal contractors to receive the COVID-19 vaccine without a testing opt out. This includes some Medicare and Medicare providers including Fee For Service Facilities. Please read the below Center for Medicare and Medicaid Services (CMS) press release and the list of covered facilities.

ICA has reached out to CMS, members of Congress, and our legal counsel on this matter and will provide updates as they become available. According to CMS they are developing an interim rulemaking that will be published in October. As we get more details, we will update this information.

Biden-Harris Administration to Expand Vaccination Requirements for Health Care Settings

Sep 09, 2021 

The Biden-Harris Administration will require COVID-19 vaccination of staff within all Medicare and Medicaid-certified facilities to protect both them and patients from the virus and its more contagious Delta variant.  Facilities across the country should make efforts now to get health care staff vaccinated to make sure they are in compliance when the rule takes effect.

The Centers for Medicare & Medicaid Services (CMS), in collaboration with the Centers for Disease Control and Prevention (CDC), announced today that emergency regulations requiring vaccinations for nursing home workers will be expanded to include hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, among others, as a condition for participating in the Medicare and Medicaid programs. The decision was based on the continued and growing spread of the virus in health care settings, especially in parts of the U.S. with higher incidence of COVID-19. 

“There is no higher priority for us than patient health and safety. As the Delta variant strengthens, the Biden-Harris Administration is committed to doing everything we can to keep patients, and those who care for them, safe,” said U.S. Department of Health and Human Services (HHS) Secretary Xavier Becerra. “There is no question that staff, across any health care setting, who remain unvaccinated pose both direct and indirect threats to patient safety and population health. Ensuring safety and access to all patients, regardless of their entry point into the health care system, is essential.”

Nursing homes with an overall staff vaccination rate of 75% or lower experience higher rates of preventable COVID infection. In CMS’s review of available data, the agency is seeing lower staff vaccination rates among hospital and End Stage Renal Disease (ESRD) facilities. To combat this issue, CMS is using its authority to establish vaccine requirements for all providers and suppliers that participate in the Medicare and Medicaid programs. Vaccinations have proven to reduce the risk of severe illness and death from COVID-19 and are effective against the Delta variant.  CMS will continue to work closely with all Medicare and Medicaid certified facilities to ensure these new requirements are met.

“We know that those working in health care want to do what is best for their patients in order to keep them safe,” said CMS Administrator Chiquita Brooks-LaSure.  “As the Delta variant continues to spread, we know the best defense against it lies with the COVID-19 vaccine. Data show that the higher the level of vaccination rates among providers and staff, the lower the infection rate is among patients who are dependent upon them for care. Now is the time to act. I’m urging everyone, but especially those fighting this virus on the front lines, to get vaccinated and protect themselves, their families, and their patients from COVID-19.”

CMS is developing an Interim Final Rule with Comment Period that will be issued in October.  CMS expects certified Medicare and Medicaid facilities to act in the best interest of patients and staff by complying with new COVID-19 vaccination requirements.  Health care workers employed in these facilities who are not currently vaccinated are urged to begin the process immediately. Facilities are urged to use all available resources to support employee vaccinations, including employee education and clinics, as they work to meet new federal requirements.

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All fee-for-service (FFS) facilities

Facilities

• Documentation guidelines for evaluation & management (E/M) services 

Hospitals & inpatient facilities

Acute care, Critical Access Hospitals (CAHs), & Inpatient Rehabilitation Facilities (IRFs)

• Hospital Open Door Forums
• CAH center
• Hospital center
• Inpatient Rehabilitation Prospective Payment System fact sheet (PDF)
• Inpatient Rehabilitation Facility documentation requirements (PDF)

Outpatient facilities 

Ambulatory Surgical Centers (ASCs), Comprehensive Outpatient Rehabilitation Facilities (CORFs), Federally Qualified Health Centers (FQHCs), & Rural Health Clinics (RHCs)

• ASC center
• FQHC center
• RHC center

Long-term care facilities & Skilled Nursing Facilities (SNFs)

• Nursing Home Resource Center
• Skilled nursing facility/long term care Open Door Forum
• American Indian/Alaska Native long term care resources
• SNF center

Durable medical equipment suppliers (DMEs)

• Pharmaceutical, pharmacy, & device manufacturers Open Door Forums 
• Durable medical equipment, prosthetics, & orthotics (DMEPOS) toolkit
• DME center
• Home health, hospice, & durable medical equipment Open Door Forum

Home Health Agencies (HHAs)

• Home health, hospice & durable medical equipment Open Door Forum
• HHA center

Hospices

• Home health, hospice & durable medical equipment Open Door Forum
• Hospice center

Clinical labs

• End-stage renal disease & clinical lab Open Door Forum
• Clinical labs center

Ambulances

• Ambulance Open Door Forum
• Ambulance services center

https://www.cms.gov/newsroom/press-releases/biden-harris-administration-expand-vaccination-requirements-health-care-settings